How To Encourage Candid Responses During Voir Dire
Every attorney knows voir dire is a unique time at trial as it is the only time a two-sided conversation between counsel and the jury pool is allowed. If an attorney fails to gain honest responses from jurors during voir dire, he will lose this golden opportunity to assess those who will potentially hold his case in their hands. While most attorneys are well aware that they must treat jurors with respect and try to establish a rapport, there are several less-known strategies to implore candidness from jurors.
As voir dire forces people to reveal personal information to a room full of strangers, a situation that rarely if ever would arise outside of a courtroom setting, the dynamic of the situation can be very intimidating. Attempt to make your potential jurors more comfortable in this awkward situation. Acknowledge how difficult it can be to speak in the courtroom setting, even more so to speak openly and candidly. After verbalizing this recognition, disclose some personal information about yourself before probing into the jurors’ lives. This encourages reciprocation on the part of the jurors and creates a sense of openness.
Before beginning your questioning, emphasize as much as possible that every person, yourself included, has life experiences that cause certain cases to be unsuitable for their jury service. Emphasize to them that there is absolutely nothing wrong with this, and in fact, it’s the purpose of voir dire to see who may best serve on different kinds of cases. It’s imperative jurors understand this construct, and not believe they must appear fair and impartial regardless of their experiences.
At this juncture you may be ready to begin questioning your jurors regarding specific case issues. Consider first asking background questions before any others. Encourage jurors to talk about themselves, sticking with non-sensitive subjects, like what they do for a living or their children. This is important not only to help with the jurors’ comfort level in warming up to talking in front of the other jurors, but also as a way to lead up to the more sensitive case-specific questions. Although starting with these questions can be tempting, it may serve to upset or offend jurors with related life experiences or strongly held beliefs.
Inevitably in every jury pool there will be reluctant or difficult jurors. When you have reluctant jurors who provide curt or vague answers, do not hesitate to ask them, “would you mind telling me a little bit more about your thoughts on…” It’s better to gently probe than to get stuck with an unknown wildcard as a member of your jury. Also, by asking follow up questions in response to shorter answers, you can establish a standard for other jurors that these answers will not be accepted.
Another subtle but paramount strategy is the way in which you form your questions. Simply asking, “how many of you…” as compared to, “do any of you…” could prompt a very different number of people to respond at all, regardless of in what manner. “How many of you” naturally implies an expectation of at least some responses, whereas “do any of you” has an implication of few or even no responses, which can easily become a self-fulfilling prophecy. You may wish to phrase your questions in a way that prompts the non-politically correct response: “Many jurors have said they feel illegal immigrants benefit from the court system in this country and shouldn’t be allowed to sue in American courts. Who else shares these feelings?” This concept of word structuring in your questions may become even more crucial when jurors responding affirmatively is in opposition to your client.
Finally, it is important to use positive reinforcement. If a juror openly and honestly tells you their sentiment that is clearly in opposition to your side, praise them for their honesty. Thank them and tell them how much you appreciate their willingness to be candid. Reinforcing candidness will increase the likelihood that others will also offer honest opinions, rather than keeping their thoughts to themselves. With these simple strategies you will gain greater knowledge from your prospective jurors and will be better able to determine who to deselect from your pool.